52/Plumbing Engineer December 2021
multiple buildings, regardless of how many phases of the development there may be or how may buildings are within each phase, each building constitutes a discrete improve- ment for purposes of [the statute of repose], such that the opening of each individual building to its intended use, or the substantial completion of the individual building and the taking of possession for occupancy by the owner or owners, triggers the statute of repose -. with respect to the com- mon areas and the limited common areas of that building. In addition, where a particular improvement is integral to, and intended to serve, multiple buildings (or the condominium development as a whole), the statute of repose begins to run when that discrete improvement is substantially complete and open to its intended use." D'Allessandro , 156 N.E.3d at 198-99. Defendants prevail in D'Allessandro In D'Allessandro , the Hewitts Landing Condominium consists of 150 units, contained in 28 buildings, built over the course of 24 phases between 2008 and 2015. As indi- vidual units or entire buildings were complete, the architect certified that such units or buildings were "substantially complete." The plaintiffs, trustees of the condominium associa- tion, filed suit in Superior Court on Nov. 3, 2017, seeking damages for alleged design and construction defects to In the hypothetical case, the dates in (1) and (2) are the same - the project was opened on the same date as sub- stantial completion and occupancy by the owner: Jan. 31, 2015. Six years from this date is Jan. 31, 2021. The action was commenced on Oct. 1, 2021. Based on this analysis, the lawsuit was started eight months too late; the action is time-barred under the statute of repose and the defendant would prevail on a motion for summary judgment. Multiphase/multibuilding analysis Turning back to D'Allessandro , Massachusetts' high- est state court applied the above analysis to a multiphase, multibuilding condominium development. The local federal court certified the following question of state law to the Supreme Judicial Court of Massachusetts: "Where the factual record supports the conclusion that a builder or developer was engaged in the continuous con- struction of a single condominium development compris- ing multiple buildings or phases, when does the six-year period for an action of tort relating to the construction of the condominium's common or limited common elements start running?" D'Allessandro , 156 N.E.3d at 198. The Supreme Judicial Court cut right to the chase early on in its decision, responding as follows: "Where a condominium development is comprised of
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